Dr Louise Crowley: Ireland needs to consider ‘clean-break’ divorce

Dr Louise Crowley, senior lecturer at University College Cork School of Law, writes on the case for reform of Ireland’s divorce laws.

Divorce was introduced in Ireland in 1996 following the tightly contested referendum which was passed by a small margin, with just 9,114 votes separating the voting electorate.

To address the concerns of the large dissenting minority, the Irish divorce regime maintains financial ties between spouses post-divorce in order to properly share the fruits of the marriage. It also protects dependent spouses, typically the spouse who has raised the family at the cost of a career. The result is a system which prevents separating couples from making a clean financial break.

In order to get a divorce, a couple must satisfy three conditions. Firstly, they must have lived apart for four out of the five years before seeking a divorce. The passing of time, rather than the allocation of blame, means that one spouse cannot rely on the other spouse’s misconduct to secure the divorce. This approach was adopted to avoid the exacerbation of the already difficult family circumstances. Minister Josepha Madigan has sought to reduce the four-year waiting period to two years and a referendum on the issue is anticipated in 2019, further improving accessibility to divorce.

The second criterion, that there is no reasonable prospect of reconciliation between the parties, was included to convince the cautious Irish voters that divorce would not be available unless the marriage is truly beyond repair. In practice, once one spouse decides to look for a divorce the court is generally satisfied that this is sufficient evidence of the absence of any prospect of reconciliation.

The third and most challenging criterion is that proper provision must made for the parties. This in essence requires the court to ensure that the financial terms of the divorce adequately reward the contributions of both spouses during the marriage and results in a fair split of available and future assets. Properly providing for them is an entirely subjective exercise based on the circumstances of the divorcing couple. It requires the court to assess the nature and impact of the marriage, and the various circumstances relevant in each case.

Irish divorce law does not automatically split the assets 50-50 between the spouses. The law does not contain any fixed rules or formula to guide the court. In the 22 years since the introduction of divorce, court judgments have demonstrated that this undefined and vague objective, especially in strained financial times, often forces the courts to make long-term maintenance orders, forcing the spouses to remain financially linked well after the divorce is granted.

This approach prevents parties from cutting all ties on divorce. For a typical Irish couple, making proper provision on divorce is simply not financially possible, especially in families where one spouse is the breadwinner and the other spouse the homemaker. This represents 35 per cent of Irish families. Such cases can require the breadwinner to finance the upkeep of the dependent spouse until that spouse is in a position to become financially independent.

The career sacrifices made by the homemaker spouse in the course of the marriage have very often diminished potential earning capacity and thus require ongoing maintenance from the spouse who benefited career-wise during the marriage. Ongoing financial ties are the unavoidable consequence of a system that requires provision to be proper in light of all the circumstances of the marriage. Exacerbating this is the open-ended right any time after the divorce for either spouse to look for more financial support from their former spouse, ending only when the claimant spouse remarries another.

The proposed Law Reform Commission review is likely to focus on the impact of this proper provision test together with the open-ended right to seek financial orders, which prevent many ex-spouses from ever moving on with their lives post-divorce.

What of the spouses who have capacity for financial independence, and wish to dissolve all aspects of their marriage? Or the previously dependent spouse who would prefer to take a lump sum on divorce that is less that proper provision, to allow them to exit the marriage absolutely?

Irish divorce law currently demands that parties retain financial ties, and can ignore the reality that it in some cases it is in everyone’s best interests to allow the parties to sever all ties.

This inability to ever impose an absolute clean financial break certainly merits political and societal debate. In considering what needs to be done to allow for a more final decision by the courts, the Law Reform Commission will need to engage in a long-overdue conversation about the aims of Irish divorce law, one which was notably absent at the time of its introduction.

The Act in its current form fails to consider what divorce seeks to achieve for Irish families and Irish society, beyond a crude notion of financial provision. The needs of spouses and indeed second families post-divorce must be factored into the application of divorce laws.

Evidently a clean break should not be a target in every case, long-standing dependent spouses with little chance of post-divorce financial independence will still need financial support. However, a clean financial break has repeatedly been identified by Irish courts as a legitimate expectation and must become an accessible option in appropriate cases.

Dr Louise Crowley is a senior lecturer at University College Cork School of Law.